Tuesday, February 28, 2017

When the annual 60-day legislative session gets
under way next month, lawmakers on both sides of the aisle will be looking for
ways to keep Florida’s kids safe from guns, reported the Tampa Bay Times.

Statewide, the number of children killed by guns has
risen nearly 20 percent since 2010, a Tampa Bay Times analysis has
found. Child gun injuries went up 36 percent.

Not surprisingly, the solutions up for consideration
this year differ radically along party lines. Democrats want to tighten the
existing law that hold adults criminally liable when kids access their
firearms, and increase the penalties. But the lawmaker with the most power over
the matter has a different idea.

“We could do away with gun-free zones,” said Senate
Judiciary Committee Chairman Greg Steube, R-Sarasota, naming a key piece of the
National Rifle Association’s agenda in Florida.

Florida law currently prohibits concealed weapons in
15 types of locations, including elementary through high schools. Steube and
other Republican lawmakers have argued that people are generally less safe in
these so-called “gun free-zones” because they cannot protect themselves in an
active-shooter situation.

“There’s not a school resource officer in every one
of our elementary schools,” he said. “If a terrorist wants to come in and start
shooting our kids, there’s nothing to stop them.”

The Times looked at all types of gun
incidents that affect children: accidents, suicides and shootings that took
place during the commission of a crime, among them. The newspaper found the
number of accidents and assaults were roughly even between 2010 and 2015, but
that accidents increased far faster than assaults or suicides.

More than a quarter-century ago, Florida took the
lead on preventing accidental firearm incidents. In 1989, it became the first
state to lock up gun owners for failing to secure their firearms around kids.

Under the law, which remains on the books, a gun
owner can face second-degree misdemeanor charges if a child 15 or younger
accesses his or her weapon and takes it to a public place or waves it in a
threatening way. If the child uses the weapon to kill or injure someone, the
gun owner can face third-degree felony charges punishable with a fine up to
$5,000 and up to five years in prison.

The 1989 law achieved “significant, impressive
results,” said Ari Freilich, a staff attorney at the San Francisco-based Law
Center to Prevent Gun Violence. A 2000 study in the journal Pediatrics found
it was associated with a 51 percent drop in unintentional child gun deaths.

But some gun-safety advocates contend the measure
isn’t working as well as it once did, in part because people have forgotten
about it.

Monday, February 27, 2017

Boston revives a national drive — decades old but
recently gaining momentum — to treat violence as a contagious disease, a public
health emergency, reported the Boston Globe.

When a young man appears in the emergency room,
stabbed or shot, “he already has the disease of violence,” said Dr. Gary
Slutkin, founder and executive director of Cure Violence, the Chicago-based nonprofit
that famously deploys street workers to defuse neighborhood conflicts.

The victim’s arrival signals that more violence is
likely to occur, and opens an opportunity to heal the social and emotional
maladies that feed violence.

As many as 45 percent of people who go to the
hospital with violent injuries return within five years, shot or stabbed again,
sometimes fatally. And retaliation can lead to further shootings.

“It’s essential that there be the right type of
professional who can continue to work with that person — to essentially change
his thinking and his lifestyle so he doesn’t remain at this very, very high
risk,” Slutkin said.

That’s why, said Slutkin, hospital-based programs
such as Boston Medical Center’s Violence
Intervention Advocacy Program, now in its 11th year, are essential to any
antiviolence effort. The program has recently expanded into job placement and
housing assistance.

Sunday, February 26, 2017

President Donald Trump’s administration recently said that it will crack down on marijuana sales in
states that have approved recreational pot use, reported McClatchy Newspapers. The war on drugs--marijuana--is back.

White House Press Secretary Sean Spicer said the
Department of Justice will pursue enforcement of federal law against
recreational use, but not medical use. The statement marked a major break with
the Obama administration’s hands-off approach to the growing marijuana
legalization movement.

“I do believe that you’ll see greater enforcement,”
Spicer told reporters at his daily briefing. “Because again there’s a big
difference between the medical use … that’s very different than the
recreational use, which is something the Department of Justice will be further
looking into.”

The decision is certain to provoke a fight with the
states that have legalized recreational marijuana. Those states are Alaska,
California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington and
the District of Columbia.

Saturday, February 25, 2017

It is time to rethink parole. Prisons are stuffed
beyond capacity and efforts at reform have had minimal impact and have failed
to provide any meaningful dividends.

The mantra of many parole boards is that parole is a
privilege not a right. There are many legitimate reasons to deny that privilege
-- ongoing and persistent failure to conform to prison rules, refusal or
failure to complete rehabilitation programs or a pattern of past failures on
parole.

There is little an inmate can do to immediately
correct a majority of the reasons for denying parole. Other than the passage of
time along with a persistent effort to complete programming and a genuine
commitment to planning a meaningful reintegration into society, inmates cannot
easily undo a parole board's decision to deny parole.

Parole is subjective. There are about 1.5 million
men in women in America's state and federal prisons. Most of those men and
women will be released someday. Would it be beneficial to society, and the
inmate, if release came quicker and the inmate was better prepared to succeed?

Although there are criteria and policies to guide
parole members on making release decisions, the process is different from any
other decision made in the criminal justice system.

Decisions are often made after a brief interview
with an inmate -- without the aid of counsel. The deliberation process is
brief, or in some instances nonexistent, and in many states there is no opportunity
for review. In Pennsylvania, an appellate court has held that, "(p)arole,
being a matter of administrative discretion and determination, is nonjudicial
and not subject to judicial review."

In Ohio, officials are trying to address the State
Parole Board's abysmal parole rate -- 7 percent of inmates interviewed for
parole in 2015 were released. One effort by the Department of Rehabilitation
and Corrections involves workshops to prepare inmates for interviews.

The workshops include sessions on grooming,
etiquette, selling oneself, what to say, even advice about combing hair and
brushing teeth.

The Ohio parole board touts its comprehensive
17-point release consideration criteria, but the MarshallProject.com points
out, "nowhere on that list is 'posture, dress, language and grooming or
public opinion,'" which seems to play a significant role with most parole
boards.

Ohio's lesson on the board's "public
safety" responsibility provides a glimpse into the staggering weight
public safety plays in parole decisions. As part of the lesson inmates are told
that the decision to release must be considered in the context of public
safety, and "public perception," of violent crimes. The Ohio board is
concerned with public perception not just reality.

According to Beth Schwartzapfel, inmates view a news
report, where a county prosecutor takes the parole board to task after a murder
by a parolee, "it's shameful," the prosecutor says. "They should
take the responsibility for the decision and their poor judgement." Parole
rates are often impacted by cases that go bad. Ohio goes so far as to tell
inmates that it's a parole "factor."

The parole process can be streamlined. Parole boards
should focus their time and resources on the inmates that really matter.

Parole should be split into three categories. First,
those inmates who have complied with all requirements for parole --
programming, good behavior, institutional support and a low risk assessments.
These inmates should be automatically paroled, without review by the parole
board.

Category II would include those inmates on the
bubble, maybe a high risk or past behavior history. Those inmates should be
interviewed by the board, with the aid of counsel, and the ability for review
of the decision.

Category III would be for those who are unlikely to
be paroled -- refusing programming, behavior problems and no institution support.
Those inmates are automatically refused without seeing the board. Eliminating
those who earned release and those who haven't would leave more time for the
board to focus on those inmates that need attention.

Parole interview preparation plays a role in getting
inmates out of prison. However, preparation will have little impact without
systemic change. Parole those who have earned it, keep those who haven't and
closely scrutinize those in the middle.

Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book "The Executioner's Toll,
2010" was released by McFarland Publishing. You can reach him atwww.mattmangino.com and follow him
on Twitter @MatthewTMangino.

Friday, February 24, 2017

Minnesota Attorney Brock Hunter has developed a
specialty in representing veterans charged with crimes outside the military
justice system, reported the ABA Journal. He and his colleagues in this area offer a version of the brain
defense, an approach that considers the possible influence of post-traumatic stress
disorder, depression and traumatic brain injury caused by their military
experience on their clients’ criminal behavior. They seek understanding and
treatment instead of prison and, in some cases, mercy instead of execution.

Hunter is a veteran himself, having served four
years in the Army, mostly as a sniper scout in the tension-filled demilitarized
zone of Korea during the late 1980s.

In 2007, Hunter helped draft a Minnesota law that
permits judges to consider the option of sending veterans to treatment programs
if they suffer from combat-related mental health disorders. The law requires
courts to ask whether a criminal defendant is a veteran and allows their
lawyers to order psychological evaluations. If a defendant is diagnosed with a
mental health disorder, the court can work with the Department of Veterans
Affairs on a treatment plan as part of the sentencing.

Hunter started getting national press attention for
his work; the New York Times quoted him in a series about veterans
charged with murder. Demand for his services grew. In hometowns across the
country, veterans were getting arrested for domestic violence, drunk driving,
fights and other crimes.

High-profile cases drew even more attention. In Fort
Carson, Colorado, returning soldiers were arrested for fighting, beatings,
rapes, DUIs, drug deals, domestic violence, shootings, stabbings, kidnapping
and murder. The violence prompted the Army to commission a study called the
epidemiologic consultation to examine why veteran violence was increasing. It
found that the murder rate at the base had doubled, and the number of rape
arrests tripled. From 2005 to 2008, 13 soldiers at Fort Carson were charged
with homicide.

Soldiers from one particular unit, known as the
Lethal Warriors, were charged with most of the murders. Members of that unit,
which by reputation had served in the most violent battlefields in Iraq, also
had a rate of PTSD three times that of other units.

The report found “a possible association between
increasing levels of combat exposure and risk for negative behavioral
outcomes.” However, it also cited other risk factors, such as criminal
histories and experiences of drug and alcohol abuse. The report was careful to
note that “overall, most soldiers are doing well.” Many, it pointed out, had
seen heavy combat and had risk factors for violence yet committed no crimes.

Thursday, February 23, 2017

Violent crime in the U.S. has fallen sharply over
the past quarter century, according to research complied by the Pew Research
Center. There are two commonly cited
measures of the nation’s crime rate. One is an annual report by the FBI of
serious crimes reported to police in approximately 18,000 jurisdictions around
the country. The other is an annual survey of
more than 90,000 households conducted by the Bureau of Justice
Statistics, which asks Americans ages 12 and older whether they were the
victims of crime in the past six months (regardless of whether they reported
those crimes to the police or not). Both the FBI and BJS data show a
substantial decline in the violent crime rate since its peak in the early
1990s.

Using the FBI numbers, the rate fell 50 percent between
1993 and 2015, the most recent full year available. Using the BJS data, the
rate fell by 77 percent during that span. It’s important to note, however, that the
FBI reported a 3 percent increase in the violent crime rate between 2014 and
2015, including a 10 percent increase in the murder rate. (The BJS figures show a
stable violent crime rate between 2014 and 2015, but they do not count
murders.) Some experts have projected that the 2016 FBI data will show another
increase in the violent crime rate – including another
rise in the murder rate – when they are released later this year.

Wednesday, February 22, 2017

In 2014, Eric Holder, then the U.S. attorney
general, articulated the uncertainty swirling around risk assessment tools in a speech
given to the National Association of Criminal Defense Lawyers’ 57th Annual
Meeting, reported the ABA Journal.

“Although these [risk assessment] measures were crafted with the best
of intentions, I am concerned that they may inadvertently undermine our efforts
to ensure individualized and equal justice,” he said. “They may exacerbate
unwarranted and unjust disparities that are already far too common in our criminal
justice system and in our society.”

Angel Ilarraza, director of consulting and business
development at Northpointe Inc., the Michigan-based company that created
Compas, thinks that this concern is ill-founded. “There’s no secret sauce to
what we do; it’s just not clearly understood,” Ilarraza says.

Compas uses an algorithm, a term Ilarraza does not
like because he thinks it is confusing, that assesses 137 questions answered by
the charged person and supplemented by his or her criminal records. These
inputs are plugged in to the algorithm, which is a set order of operations like
a math equation. Based on this process, the person’s likelihood of committing a
future crime (the output) is pegged on a scale of 1 (low risk) to 10 (high
risk). Beyond Wisconsin, Compas also is used in California, Michigan and New
York, among other jurisdictions.

The questionnaire covers the gamut of a person’s
criminal history and personal background as a way to decipher risk. Questions
include whether an alleged offender experienced his or her parent’s divorce or
has a telephone at home, and whether the screener thinks the defendant is a
suspected or admitted gang member.

Ilarraza, supporting the Wisconsin Supreme Court
view, is quick to point out that the tool is meant to inform decision-making.
“It facilitates the implementation of evidence-based practices,” he says.

Christine Remington, the Wisconsin assistant
attorney general who argued Loomis for the state in the supreme court, agrees.
“I don’t think there’s any question that [Compas] is a good thing,” she says.
It allows the corrections department to “tailor limited resources in the best
way possible.”

Compas recently came under scrutiny by ProPublica,
an investigative journalism organization. Assessing the tool’s outputs in
Broward County, Florida, ProPublica found that it was 61 percent predictive of
rearrest, “somewhat more accurate than a coin flip.” The algorithm was likely
to indicate black defendants as “future criminals” at almost twice the rate as
white defendants.

Northpointe disputes ProPublica’s findings. The back-and-forth
can be read in full on ProPublica’s
website.

This clash illustrates a new found popular interest
in these tools. But using math to guide decision-making in the criminal justice
system is not new. According to Richard Berk, a professor of criminology and
statistics at the University of Pennsylvania, an Illinois parole board started
to use algorithms in the 1920s.

“In the ‘20s, parole boards were worried about what
parole boards are worried about today: If I release somebody, are they going to
commit a horrible act?” Berk explains. Back then, the tools were simple
mathematical tabulations that assessed risk by comparing people up for parole
to those previously released.

Since then, the math behind these tools has improved
accuracy, and technological advancement allows for statisticians to wrestle
with bigger data sets through computers. However, the point remains: U.S.
criminal justice systems have used math to guide decision-making for about a
century.

Even with this history, how these tools affect equal
protection and due process of defendants remains unresolved.

Tuesday, February 21, 2017

A former regional manager for private prison company
Corrections Corporation of America says top employees at a private prison in
Idaho were given yearly bonuses if they cut costs on salary, wages and other
operational expenses, reported The Associated Press.

CCA, which has since changed its name to CoreCivic,
operated the Idaho Correctional Center under a $29 million annual contract with
the state of Idaho until chronic understaffing, violence and other problems
prompted Idaho Gov. C.L. "Butch" Otter to order the state to take
over the facility in 2013.

Kevin Myers, CCA's former managing director who
oversaw the Idaho facility and several others, testified in Boise's U.S.
District Court recently as a witness in a lawsuit against the company.

A group of inmates at the Idaho prison sued in 2012,
contending that CCA understaffed the prison to boost profits in a so-called
"ghost worker scheme." The inmates contend the understaffing made the
facility more dangerous and led to an attack where they were jumped, beaten and
stabbed by members of a prison gang.

CCA has vigorously denied those claims.

Myers said his supervisor, CCA Vice President
Steven Conry, sometimes directed him to reduce prison budgets. Conry told him
that salary, wages and overtime were "the primary levers we can manipulate
to impact our budgets," Myers said.

Monday, February 20, 2017

America's unsubstantiated fear--convicted sex
offenders who don't respond to treatment and are released from prison to offend
again, reported the Columbus Dispatch.

The myth is reinforced whenever cases go bad and get
extensive media coverage, said Melissa Hamilton, a law professor who has
written extensively about sex offenders.

"These incredibly horrible stories occur, the
media picks them up and the public reacts," she said. "It stokes
fears of sex offenders as people who are likely to re-offend. But the
statistics don't support it."

Hamilton, a visiting criminal-law scholar at the
University of Houston Law Center, said one of the most comprehensive studies on
sex offenders was issued by the U.S. Department of Justice in 2003. It tracked
more than 9,000 sex offenders released from prisons in 15 states, including
Ohio, in 1994. Three years after their release, 5.3 percent of the
offenders had been arrested for another sex crime.

"I wouldn't characterize that as
high-risk," Hamilton said.

The sex offenders who were most likely to offend
again were men whose victims were boys, not adults, the study found.

Two years ago, Ohio prison statistics showed that 11
percent of released sex offenders returned to prison on sex charges, compared
with a recidivism rate of 28.7 percent for all inmates.

The Justice Department study made a similar finding:
"Sex offenders in the study had a lower overall re-arrest rate than
non-sex offenders."

But Scott Matson, acting deputy director of the
Justice Department's Sex-Offender Sentencing, Monitoring, Apprehending,
Registering and Tracking office, cautioned that recidivism is hard to measure
because so many sex crimes go unreported.

In Alabama, which has the highest death penalty rate
per capita in the nation, legislators have taken a step to reduce the arbitrary
application of capital punishment in the state, reported the PacificStandard.

The Alabama House Judiciary Committee passed a bill that would stop judges from having
the final say in sentencing for capital cases in the state, and instead require
a unanimous jury to hand down a death sentence. Usually, a jury decides a
defendant’s fate in capital cases, but Alabama is the only state that still has
“judicial override,” in which a judge can overrule a jury’s recommendation for
a life or death sentence. A similar bill, which includes no language to require
a unanimous jury, is concurrently making its way through the Alabama Senate.

Ironically enough, when judicial override originated
in Florida in the 1970s, it was intended as a way to prevent juries from
over-sentencing the death penalty. After the Supreme Court struck down the
death penalty in 1972 for its arbitrary and discriminatory application, Florida
came up with the judicial override scheme, in which juries recommend a
sentence, but judges could override that decision with sufficient
justification. The Supreme Court’s concerns were assuaged, and capital
punishment was reinstituted in 1976. Alabama adopted a similar judge override
statute in 1981, and it’s the only state that still uses the practice, after
Delaware and Florida eliminated their override systems last year.

Sunday, February 19, 2017

Pennsylvania had 40 active hate groups operating
within its borders in 2016, making it the state with the fifth most extremist
organizations in the United States, reports the Harrisburg Patriot-News.

On Wednesday, the Southern Poverty Law Center
released its annual "Intelligence
Report," which documents which and how many hate groups are
operating in the country. California had the most hate groups in 2016, followed
by Florida, Texas, New York and Pennsylvania.

The number of hate and extremist organizations in
the united States rose for the second year in a row following terrorist
attacks, a contentious presidential election and divisive rhetoric.

The 40 hate groups within the state offer a variety
of extremist views in areas across Pennsylvania.

The majority of hate groups in Pennsylvania fall
under white supremacy. This includes Ku Klux Klan chapters, neo-Nazis, racist
skinheads, white nationalists and racist music groups -- a total of 24 groups.

The SPLC makes distinctions between the different
white supremacy groups and are separated into different categories.To breakdown even further there are seven KKK
chapters, four neo-Nazi groups, 6 racist skinheads groups, six white
nationalist organizations and one racist music group in the state.

Saturday, February 18, 2017

The number of hate groups in the United States
increased last year. Nationwide, researchers found a 3 percent rise in groups
that advocate and practice hatred, hostility, or violence toward primarily
members of a race, ethnicity, nation, religion, gender or sexual orientation.

This week, the Southern Poverty Law Center (SPLC)
released its annual "Intelligence Report" documenting the number and
kind of hate groups operating across the country. California had the most hate
groups in 2016, followed by Florida, Texas, New York and Pennsylvania.

Hate groups are not a new thing. The Roman Empire
persecuted Christians and other religious groups for centuries. One of
history's most infamous and horrifying hate groups were the Nazis. Adolf Hitler
and his henchmen called for the total annihilation of Jews leading to the
Holocaust and one of darkest moments in human history.

In more recent years, the act of genocide, or
attempting to obliterate an entire ethnic, racial or religious group, has
occurred in both Bosnia and Rwanda.

This is the second consecutive year that the number
of hate groups has risen. The fear of terrorist attacks, high profile hate
crimes and a contentious presidential election have all contributed to the
increase.

The largest increase involved the number of
anti-Muslim hate groups. The SPLC found that anti-Muslim hate groups rose from
34 in 2015 to 101 in 2016 — a shocking increase of 197 percent.

These numbers rose without accounting for the
inevitable pushback from President Donald Trump's ill-conceived travel ban and
the federal court's resounding rejection of the president's executive order.

While the Ku Klux Klan nearly doubled in size during
the Barack Obama Administration, according to the SPLC the number of Klan
chapters fell 32 percent from 190 groups in 2015 to 130 in 2016. Interestingly,
the number of neo-Confederate groups — the KKK's first "Grand Wizard"
was Confederate General Nathan Bedford Forrest — rose by 23 percent from 35
groups in 2015 to 43 in 2016.

What is surprising about the five leading states
with hate groups is that none — other than perhaps Florida — are traditional
states thought of as racially or religiously intolerant. Pennsylvania, for
instance, had 40 active hate groups operating within its borders in 2016,
earning itself a fifth place ranking.

The majority of hate groups in Pennsylvania fall
under white supremacy. According to the Pittsburgh Post-Gazette, the groups
include Klan chapters, neo-Nazis, racist skinheads and white nationalists. The
Nation of Islam, a black separatist group, also operates in Pennsylvania.

New York, another northern state known for its
liberal bent, ranks third in the nation for the number of hate groups. There
are 44 hate organizations throughout the state including the American Defense
League, an anti-Muslim group; the Aryan Strikeforce and the Loyal White Knights
of the Ku Klux Klan.

Hate crimes in New York City were up by nearly
one-third in 2016. NYPD statistics show that anti-Muslim attacks were
responsible for much of the rise, according to the New York Daily News.

The most recent statistics from the FBI cataloged a
total of 5,818 hate crimes in 2015 — a rise of about 6 percent over the
previous year. Again, attacks against Muslim Americans saw the biggest surge.

According to the New York Times, there were 257 reports
of assaults, attacks on mosques and other hate crimes against Muslims is 2015,
a jump of about 67 percent over 2014. It was the highest total since 2001, when
more than 480 attacks occurred in the aftermath of the Sept. 11 tragedy.

At this moment in America, hate is "hot."
Fueled in part by the vitriolic presidential campaign and becoming increasingly
combustible in the wake of the failed policy to ban "Muslim" refugees
from entering this country.

There is much blame to go around, but rhetoric from the
White House is doing nothing to turn down the heat.

— Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book "The Executioner's Toll,
2010" was released by McFarland Publishing. You can reach him atwww.mattmangino.com and follow him
on Twitter @MatthewTMangino.

Friday, February 17, 2017

Should state taxpayers be footing the bill for police services to Pennsylvania's small unprotected communities, asks PennLive.com?

That's a question being asked after the governor
floated a new plan to help close the budget deficit and fund new hires of state
police amid a statewide budget crunch and expected trooper shortage.

Specifically, Gov. Tom Wolf has proposed a new fee
on municipalities relying on state police coverage the most - an unwelcome
change for some, especially the communities that would need to pay $25 per
resident.

Nearly half of Pennsylvania's 2,500 municipalities
rely solely on state police protection. Critics of the arrangement say some of
these communities are able to afford their own police forces and have instead
taken advantage of an outdated system. As a result, they argue, taxpayers
statewide have been forced to subsidize those services -- often while also
paying to fund their own local departments.

Thursday, February 16, 2017

Two competing bills in the Indiana House seek to
make domestic violence less deadly for women — one by removing guns from the
equation, one by adding more guns, report the Indianapolis Star. Only one of them is advancing.

Moving forward is a bill that would enable victims
of domestic violence to get a handgun as soon as a judge grants a protective
order against their abuser.

Going nowhere is a bill that would quickly deprive
an alleged abuser of his guns once he becomes subject to a protective order.

This is despite an
oft-cited study by advocacy groups that found women are five times
more likely to die in domestic violence situations when a gun is present. The
same study, published in the American Journal of Public Health in 2003, found
no clear evidence that women are safer if they have access to a gun.

The legislation that's advancing, House Bill
1071, would enable abuse victims to use a protective court order as a handgun
permit, avoiding the typical waiting periods. "It would give them a chance
to immediately protect themselves," said the bill's sponsor, Rep. Sean
Eberhart, R-Shelbyville.

The Republican-controlled House Public
Policy Committee voted 8-4 along party lines to move the bill to the House
floor. The committee added an amendment to establish a group to study
repealing Indiana's law requiring a license to carry a handgun.

The legislation that has yet to be heard, House Bill
1534, would force an alleged domestic abuser who is subject to a
protective order to hand over his guns to police within 48 hours. So long as
the order remains in effect, the abuser could not buy a gun or possess a gun.

Wednesday, February 15, 2017

President Trump’s ouster of national security
adviser Michael Flynn, and the circumstances leading up to it, have quickly
become a major crisis for the fledgling administration, reported the Washington Post, forcing the White House
on the defensive and precipitating the first significant breach in relations
between Trump and an increasingly restive Republican Congress.

Even as the White House described Trump’s
“immediate, decisive” action in demanding ­Flynn’s resignation late Monday as
the end of an unfortunate episode, senior GOP lawmakers were buckling under growing
pressure to investigate it

Senate Majority Leader Mitch McConnell (R-Ky.) said
Tuesday that it was “highly likely” that the events leading to Flynn’s
departure would be added to a broader probe into Russian meddling in the U.S.
presidential election. Intercepts showed that Flynn discussed U.S. sanctions in
a phone call with the Russian ambassador — a conversation topic that Flynn
first denied and then later said he could not recall.

McConnell’s comments followed White House
revelations that Trump was aware “for weeks” that Flynn had misled Vice President
Pence and others about the content of his late-December talks with Russian
Ambassador Sergey Kislyak.

White House counsel Donald F. McGahn told Trump in a
briefing late last month that Flynn, despite his claims to the contrary, had
discussed U.S. sanctions imposed on Russia by the Obama administration in late
December, press secretary Sean Spicer said Tuesday. That briefing, he said,
came “immediately” after Sally Q. Yates, then the acting attorney general,
informed McGahn on Jan. 26 about discrepancies between intercepts of Kislyak’s
phone calls and public statements by Pence and others that there had been no
discussion of sanctions.

The American jail system is an abomination writes Ryan Cooper in The Week. Over three-fifths of people who are in jail (as opposed
to prison) have not been convicted of a crime. And of those, a large fraction
are there because they cannot afford bail. That is a gross violation of the
Fifth Amendment, which states that no person can "be deprived of life,
liberty, or property, without due process of law."

But mass incarceration of people simply because they
are poor is also the natural outgrowth of a jail system that is
chronically underfunded, locally administered, and concerned more with
warehousing troublemakers than with constitutional due process.

However, things have started to change — most
recently by something called a model
bench card for justices. It says that nobody can be jailed for
nonpayment of fines without a hearing establishing that they had the money and
deliberately refused to pay, or that nonpayment was not the defendant's fault
and alternatives to incarceration were inadequate.

So what is a bench card? Essentially, it's a
quasi-official set of rules outlining court procedure and constraining how
judges are supposed to rule — basically a cheat sheet for following the law.
This bench card is the result of consistent pressure from outside legal
efforts, most notably the ACLU, which has been suing debtor's prisons for years and years. Their
push resulted in the National Task Force of Fees, Fines, and Bail Practices,
which involved the Conference of Chief Justices (a powerful force composed of
the highest judicial officer from each state and territory), the Conference of
State Court Administrators, the ACLU, and several other organizations.

The model card provides simple and clear rules about
notifying defendants about their rights (including the right not to be jailed
for being poor), how they must be allowed to explain their financial situation,
a definition of poverty, and so on. It includes a set of procedures ensuring
this happens, as well as a list of options for people unable to pay, which
importantly includes one reading "Waiver or suspension of the amount
due," and two other similar options. Many of the worst abuses of the poor
in the criminal justice system come from treating
them as a profit center, and that is a big step away from that mentality.

Tuesday, February 14, 2017

The Death Penalty-Comment Project 3The U.S. Supreme Court has never ruled that a method of execution violated the Eighth Amendment ban against cruel and unusual punishment. Which method of execution--hanging, electrocution, gas, firing squad, lethal injection--do you find most humane? Explain you answer.

Prominent
police chiefs and prosecutors fear that the Trump administration is out of step
with evidence that public safety depends on building trust, increasing mental
health and drug addiction treatment, and using alternatives to prosecution and
incarceration, reported the New York Times.

“We need not
use arrest, conviction and prison as the default response for every broken
law,” Ronal W. Serpas, a former police chief in Nashville and New Orleans, and
David O. Brown, a former Dallas chief, wrote in a report released last week by a
leading law enforcement group. “For many nonviolent and first-time offenders,
prison is not only unnecessary from a public safety standpoint, it also
endangers our communities.”

The
organization, the Law Enforcement Leaders to Reduce Crime and Incarceration, is
made up of more than 175 police officials and prosecutors, including Charlie
Beck, Los Angeles’s police chief; Cyrus R. Vance Jr., Manhattan’s district
attorney; and William J. Bratton, the former police chief in New York and Los
Angeles.

Other leading law enforcement groups have also called for an increase
in mental health and drug treatment, a focus on the small number of violent
offenders who commit the most crimes, training officers on the appropriate use
of force, and retooling practices to reflect a growing body of evidence that
common practices, such as jailing people before trial on minor offenses, can
actually lead to an increase in crime.

Sunday, February 12, 2017

President
Donald Trump signed an executive order on Jan. 27 barring refugees, from seven
Muslim-majority countries, from entering the United States.

Protests spontaneously erupted across the country as
custom officials in U.S. airports detained and denied entry to individuals
affected Trump's executive order.

A federal judge in Seattle temporarily blocked the
enforcement of the travel ban. Trump tweeted, "The opinion of this
so-called judge, which essentially takes law-enforcement away from our country,
is ridiculous and will be overturned!"

The next day, Trump posted, "Just cannot
believe a judge would put our country in such peril. If something happens blame
him and court system. People pouring in. Bad!"

The Trump administration appealed the ruling.
Yesterday, a panel of the Ninth Circuit Court of Appeals maintained the freeze
on Trump's immigration order.

Were Trump's comments about the court on social
media a violation of the United States Constitution?

Articles I, II and III of the Constitution establish
the legislative, executive and judicial branches of government.

Separation of powers refers to the division of
government responsibilities into the three branches and to limit any one branch
from infringing on the functions of another. However, the Constitution contains
no provision explicitly declaring that the powers of the three branches of
government shall be separated.

The intent of the Doctrine of Separation of Powers
is to prevent the concentration of power in any single branch, and provide for
checks and balances. The traditional responsibilities of each branch of
government are:

— The legislative branch — Congress — is responsible
for enacting laws and appropriating the money necessary to operate the
government;
— The executive branch — President — is responsible for implementing and
administering the public policy enacted and funded by the legislative branch;
— The judicial branch — Courts — are responsible for interpreting the
constitution and laws and applying their interpretations to causes and
controversies brought before it.

According to the Cornell University Law School,
Legal Information Institute, James Madison wrote, in the Federalist Papers,
that the Doctrine of Separation of Powers did not demand rigid separation.
Those writing the Constitution, Madison explained, "did not mean that
these departments ought to have no partial agency in, or control over, the acts
of each other," but rather liberty was endangered "where the whole
power of one department is exercised by the same hands which possess the whole
power of another department."

Madison, who himself would become president,
believed that one branch of government merely challenging the function of
another branch was not an infringement on separation of powers. The security
against concentration of powers "consists in giving to those who
administer each department the necessary constitutional means and personal
motives to resist encroachments of the others."

Madison made it clear that the courageous men (and
women) of each branch of government would fight to protect their domain.
Senators would stand up to a president who overreached. Courts would overrule
the Congress if laws violated the Constitution and the president would restrain
a Congress that sought to negotiate with foreign countries.

In fact, Madison put it in plain language — he wrote
"ambition must be made to counteract ambition."

When Trump lost before the Ninth Circuit he tweeted,
"SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!" His tweet
may be in poor taste and without the decorum we have grown accustomed to after
8 years of Barack Obama, but Trump's conduct is not infringing on the
separation of powers.

The building tension between the president and the
courts did reveal some of what Madison was talking about more than two
centuries ago. Trump's Supreme Court nominee Neil Gorsuch told a Democratic
senator that he found the president's attacks on the judiciary
''disheartening'' and ''demoralizing.''

Senator Richard Blumenthal of Connecticut disclosed
the comments from Gorsuch after recently meeting with him, and Gorsuch's
confirmation team confirmed that Gorsuch was referring to Trump's comments
about the judge who halted the travel ban.

Ambition confronts ambition.

— Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book "The Executioner's Toll,
2010" was released by McFarland Publishing. You can reach him atwww.mattmangino.com and follow him
on Twitter @MatthewTMangino.

Friday, February 10, 2017

The Southern Poverty Law Center (SPLC) is suing the
state of Louisiana alleging that officials are denying poor people their
constitutional right to counsel by failing to establish an effective statewide
public defense system, according to an SPLC press release.

Last year, a funding crisis forced as many as 33 out
of 42 public defender offices to stop accepting cases or to place clients, many
of whom were in jail, on waiting lists. In December, Louisiana’s chief justice
declared an “emergency shortfall” in public defense funding.

Louisiana is the only state in the country that
relies primarily on court fees and fines to fund public defender services –
including a fee assessed against convicted indigent defendants. The state
Legislature supplements local funding sources with state funds, but this
discretionary allocation always falls far short of what is needed. The indigent
defense system has been under fire for more than 50 years.

Eighty five percent of people accused of a crime in
Louisiana are indigent. Louisiana also has the nation’s highest incarceration
rate and the second-highest wrongful conviction rate. A disproportionate number
of those incarcerated are people of color, particularly African Americans, who
comprise nearly 70 percent of the state prison population.

The U.S. and Louisiana constitutions guarantee the
right to meaningful and effective assistance of counsel to anyone charged with
a crime punishable by imprisonment. Lawyers are required to communicate with
their client about strategy, to conduct an investigation, pursue discovery,
research legal issues, file appropriate pretrial motions and advocate for the
client in court. The attorney also must possess the skill, training and time to
adequately complete these requirements. In Louisiana, system-wide defects
prevent public defenders from satisfying these basic obligations.

The number of public defenders and other
professionals needed for a functioning public defense system in Louisiana falls
far below national standards. Most criminal defendants in the state receive
attorneys in name only.

The system has not provided adequate representation
for decades. Poor people often sit in jail for months before a public defender
is appointed or takes up the case, according to the complaint. While their
cases stagnate, jobs are lost, children are left without parents and evidence
becomes stale.

Without timely appointment of counsel, the poor are
denied any meaningful investigation of the prosecution’s case, advocacy during
arraignments and bond hearings that could result in a reduction or dismissal of
charges or release on bond, access to witnesses and evidence, and assistance
with plea negotiations.

Even when attorneys are finally provided, public defenders
in Louisiana – who regularly carry two to five times the number of cases
recommended under the already inflated Louisiana Public Defender Board’s
standards – are often so overwhelmed that they can do little more than
recommend a plea agreement.

The suit seeks certification of a class of all
indigent adults in the state facing noncapital criminal charges punishable by
imprisonment. It also seeks a declaration that the plaintiffs and class have
been denied due process, equal protection of the law and the right to counsel.

The suit requests an injunction prohibiting
defendants from maintaining a public defender system that fails to provide
constitutionally adequate representation. It also asks for a monitor to be
appointed to supervise the public defense system until statewide reforms are
implemented that fix the constitutional failures. The suit does not seek the
release of prisoners awaiting trial or to overturn any criminal convictions,
nor is it asking for monetary damages for the plaintiffs.

Thursday, February 9, 2017

Donald Trump’s Supreme Court nominee Neil Gorsuch has told a
Democratic senator that he found the president’s attacks on the judiciary
‘‘disheartening’’ and ‘‘demoralizing.’’

Senator Richard Blumenthal of Connecticut
disclosed the comments from Gorsuch after meeting with the nominee, reported the Boston Globe.
Trump referred to a Seattle judge who put a stay on his immigrant travel ban as
a ‘‘so-called judge.’’ Gorsuch’s confirmation team confirmed that Gorsuch was
referring to that comment and described it as disheartening.

Wednesday, February 8, 2017

Should combat induced PTSD be considered mitigation during
the penalty phase of a death penalty trial or should it be a
disqualification from pursuing the death penalty? What is the difference between the two?

Watch my interview on WFMJ-TV21 regarding the use of fitness data recorders to investigate your activity. To watch the interview CLICK HERE

'What's in your fitbit?'YOUNGSTOWN, OH-Tracking each step has helped millions of Americans work towards
reaching their fitness goals. But the wearable technology has some
other uses that you need to know about.

Amy, a busy mom with four
children, uses technology that helps her reach fitness goals. She
credits her Fitbit with helping her lose weight over the past year. Her
Fitbit tracks every step, including stairs, heart rate, provides
reminders to go to sleep, and tracks when she sleeps. It even notifies
Amy about who is texting or calling her.

Many people are unaware that police and attorneys have also used the data from Fitbit and tracking devices to track the truth.
In
Pennsylvania, detectives in East Lampeter used data from a Fitbit
device to prove a woman fibbed when she claimed someone broke into the
house and raped her. The district attorney used data to show she was
actually walking around allegedly staging a crime scene, at the time she
claimed, she had been sleeping.

Attorney Matthew Mangino with
LGKG Law Firm in New Castle says user beware. Mangino said, "Police can
come back later with a search warrant, or a civil trial attorney can get
a subpoena and get access to your information and use your history
against you."

He points out if you are wrongly accused the
technology could help clear you. Or if you are injured in an accident or
on the job the information could show how active you were prior to that
accident. Attorney Mangino said, "Obviously if you lie you might be
exposed, but if you are telling the truth, you might also have
documentation to your truthful assertion."

Tuesday, February 7, 2017

The recent clash between President Donald Trump and
the U.S. federal judge who ruled against his immigration order has caused some
observers to ask if the U.S. is on the verge of a constitutional crisis,
reports the Washington
Post.

The country was established with a checks and
balances system composed of
three branches of government— executive, legislative, and judicial — but if two
of them are in direct opposition, a crisis could ensue where orders from one
could potentially get ignored by another, reported aol.com.

Trump has been vocal in his criticism of U.S.
District Judge James Robart after he issued a temporary stay to halt the
president's immigration order, notes theHuffington
Post.

On Saturday, Trump tweeted,
"The opinion of this so-called judge, which essentially takes
law-enforcement away from our country, is ridiculous and will be
overturned!"

The next day, he posted the message,
"Just cannot believe a judge would put our country in such peril. If
something happens blame him and court system. People pouring in. Bad!"

On ABC
News' 'This Week,' Vice President Mike Pence said on Sunday that they would
be fighting the ruling but also admitted that the judge was authorized to make
the decision and, in his words, "that's why the administration is
complying with that order as we speak."

However, University of Chicago law professor Eric
Posner has written on his website that
"Trump's 'so-called judge' remark...is clearly an attack on the
independence of the judiciary."

Posner also predicts that
"the long-term effect will be to set up a pitched battle between the
executive and the judiciary, which will damage the reputation of both."

Monday, February 6, 2017

President Trump referred to the judge who halted his immigration ban as a "so-called judge." There are two different ways that an executive
official can criticize a federal court.

One is to criticize the court’s decisions. That
is, to say that the court got the law wrong, got the facts wrong, or generally
didn’t rule the right way. Every government decision to appeal a federal court
ruling entails saying that the court got something wrong.

A second way is to criticize the court’s authority.
That is, to say that the court didn’t or shouldn’t have the power to decide the
case at all. Again, these criticisms can take different technical forms, such
as to claim a lack of jurisdiction, an improper appointment, etc. This form of
criticism is much less common. After all, federal courts still have authority in
many, even most, of the cases they decide, even when they decide them wrongly.

Will Baude an assistant professor at the University
of Chicago Law School wrote in the Washington Post:

But this distinction is why the epithet “so-called”
in “so-called
judge” raises such a red flag. Judge Robart was appointed with the
advice and consent of the Senate in 2004, and I bet there is a commission on
the wall of his chambers that proves that he has been vested with the judicial
power. But to call him a “so-called” judge is to hint that he is not really a
judge, that he lacks judicial power. It is just a hint, but it flirts with a
deadly serious issue.

Sunday, February 5, 2017

During a mid-November telephone call from prison
condemned killer Scott Dozier contemplated dying by firing squad. “That would
be my favorite way,” he said. “That would be the way to go, if it was up to
me,” reported the Las Vegas Review Journal.

In 2005, a Clark County, Nevada jury convicted
Dozier of killing 22-year-old Jeremiah Miller at a motel and robbing him of
$12,000 that Miller had brought from Phoenix to Las Vegas to purchase materials
to make methamphetamine.

Miller’s torso, cut into two pieces, was found in
April 2002 in a suitcase in a trash bin at an apartment complex. His head,
lower arms and lower legs never were recovered.

In 2005, Dozier was convicted in Arizona of
second-degree murder and given a 22-year prison sentence. In that case,
prosecutors said he shot and killed a 27-year-old man, stuffed his body into a
plastic container and dumped it in the desert near Phoenix.

Standing before a judge and flanked by three
corrections officers and his attorney at a recent court appearance, Dozier made
his desires clear and raised questions about what would happen should Nevada
legislators decide to abolish the death penalty.

“My goal is to be executed, first and foremost,”
said a shackled Dozier, wearing an orange prison jumpsuit, black rectangular
glasses and white Nikes. “But if I’m not, and I’m going to be to stuck alive, I
would like to know what my options are.”

Nevada’s last execution, by lethal injection,
occurred at the Nevada State Prison in April 2006.

The state has executed 12 inmates since capital
punishment was reinstated by the Legislature in 1977. All but one were inmates
who, like Dozier, voluntarily gave up their appeals. Last year, prison
officials sent out 247 requests for proposals after a stockpile of at least one
drug used in executions expired, and not one response was received.

Other states have cut back on executions, as only 20
people were executed across the nation in 2016, the fewest in 25 years. On
Thursday, a federal judge in Ohio found that state’s lethal injection process
unconstitutional.

Legislators in Nevada are weighing a bill that would
make life without the possibility of parole the maximum criminal penalty.

Saturday, February 4, 2017

Faced with a rapidly growing prison population in a
state with the second-highest incarceration rate in the nation, a task force
created by Oklahoma Gov. Mary Fallin issued a report calling for dramatic
decreases in sentences for nonviolent drug dealers and manufacturers, reported
The Oklahoman.

Without reform, Oklahoma is on pace to add 7,218
inmates over the next 10 years, requiring three new prisons and costing the
state an additional $1.9 billion in capital expenditures and operating costs,
the report said.

But task members said those costs can be averted and
the prison population can be reduced 7 percent over the next decade through a
combination of sentence reductions and other reforms, including increased
funding for alternative mental health and substance abuse treatment programs.

Oklahoma currently has 61,385 individuals in its
overcrowded prison system.

Oklahoma's prison population, which is at 109
percent of capacity, has grown 9 percent in the past five years and is now 78
percent higher than the national average. Only Louisiana has a higher rate, the
report said.

Friday, February 3, 2017

President Donald Trump made a prime-time
announcement of his nominee for the U.S. Supreme Court. His choice is Judge
Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit. Trump boasted
that he has selected an individual whose “qualities … closely define what we’re
looking for” to fill the vacancy left by the late Justice Antonin Scalia.

The Heritage Foundation’s Daily Signal reported that the 49-year-old Gorsuch
would bring to the court a strong record on gun rights and religious freedom,
and what admirers call a clearly articulated judicial philosophy.

Gorsuch was born in Denver, but spent his formative years in Washington D.C.
when his mother joined the Reagan administration as the first woman to lead the
Environmental Protection Agency.

He graduated from Columbia University, Harvard Law School and Oxford University
in England.

According to the New York Times, Gorsuch served as a law clerk to former
Justice Byron R. White, then a retired justice of the Supreme Court, and
Justice Anthony Kennedy. He was fond of White, a fellow Coloradan. “I began my
legal career working for Byron White,” he said, “the last Coloradan to serve on
the Supreme Court — and the only justice to lead the NFL in rushing.”

Will Gorsuch be another Antonin Scalia, the man he is to replace? Caleb Mason a
partner at Brown, White and Osborn in Los Angeles writing for The Crime Report
doesn’t think so.

Mason wrote a detailed essay examining Scalia’s unique view of criminal law
jurisprudence.

He wrote that Scalia’s “(The) weird mix of judicial impulses that led to the
dramatic shifts in the law listed above is his and his alone. His criminal law
views didn’t predictably track right or left.”

Gorsuch’s record on criminal justice appears to be less conservative that his
record in other areas of the law.

Gorsuch is no fan of overcriminalization. In a 2006 speech, Gorsuch mocked some
overreaching federal criminal statutes, “Businessmen who import lobster tails
in plastic bags rather than cardboard boxes can be brought up on charges.
Mattress sellers who remove that little tag? Yes, they’re probably federal
criminals too.” According to Slate, he went on to say, “What happens to
individual freedom and equality when the criminal law comes to cover so many
facets of daily life that prosecutors can almost choose their targets with
impunity?”

In a recent case before the 10th Circuit, Gorsuch dissented from two of his
conservative colleagues that held that a police officer was immune from suit
after he arrested a seventh grader for making burping sounds during class.

According to Thinkprogress.com, Gorsuch wrote that state law “does not
criminalize ‘noise(s) or diversion(s)’ that merely ‘disturb the peace or good
order’ of individual classes.” He suggested that the teacher should have sent
the student to detention or the principal’s office rather than turning him over
to the police.

Neal K. Katyal, a professor at Georgetown University and a former acting
solicitor general in the Obama administration wrote in the New York Times, “I have
no doubt that if confirmed, Judge Gorsuch would help to restore confidence in
the rule of law. His years on the bench reveal a commitment to judicial
independence — a record that should give the American people confidence that he
will not compromise principle to favor the president who appointed him.”

Judge Gorsuch may have cried when he heard Justice Scalia had died, but at
least on criminal justice issues he does appear to be completely in line with
the late justice. As Katyal wrote, “If he is confirmed, he’ll have 30 years to
forge his own judicial identity. And whoever he becomes on the Court, he won’t
be another Scalia.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George
P.C. His book “The Executioner’s Toll, 2010” was released by McFarland
Publishing. You can reach him at www.mattmangino.com and follow him on Twitter
@MatthewTMangino.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.